Latz v Amaca Pty Ltd - [2017] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LATZ v AMACA P/L (FORMERLY JAMES HARDIE & CO P/L)
[2017] SADC 56
Judgment of His Honour Judge Gilchrist
26 May 2017
TORTS - NEGLIGENCE
ASBESTOS
Whether the plaintiff was exposed to asbestos dust from products produced by the defendant in connection with the construction of his house and his erection of a fence.
Held: The evidence establishes that the plaintiff was exposed as a result of his erection of a fence.
Jones v Dunkel (1959) 101 CLR 298; Manly Council v Byrne and Anor [2004] NSWCA 123, considered.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The plaintiff suffers from terminal malignant mesothelioma. Damages for pain and suffering and loss of amenity, past and future gratuitous care, past and future medical expenses, past and future Sullivan & Gordon damages and future economic loss assessed. Whether the potential receipt by the plaintiff’s spouse of a portion of his pension upon his death is taken into account in assessing his loss.
Held: Any such entitlement must be ignored in making the assessment.
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Wallaby Grip Limited v Peirce [2000] NSWCA 299; Brennan v James Hardie & Co Pty Ltd [2001] NSWDDT 2; Kable v Director of Public Prosecutions (1996) 189 CLR 51; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329; Dean v Tower Insurance Limited [2013] NSWDDT 9; Dionisatos v Acrow Formwork and Scaffolding Pty Ltd [2013] NSWDDT 8; Geyer v Resi Corporation [2013] SADC 122; Rogers v Amaca Pty Ltd [2014] NSWDDT 1; Dunning v BHP Billiton Ltd [2014] NSWDDT 3; National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sullivan v Gordon (1999) 47 NSWLR 319; Abel v Amaca Pty Ltd [2010] SADC 98; Amaca Pty Ltd v Tullipan [2014] NSWCA 269; Nguyen v Nguyen (1990) 169 CLR 245; Khoury v Government Insurance Office of NSW (1984) 165 CLR 622; Griffiths v Kerkemeyer (1977) 139 CLR 161; Skelton v Collins (1966) 115 CLR 94; Sharman v Evans (1977) 138 CLR 563; Fitch v Hyde Cates (1982) 150 CLR 482; Parry v Cleaver [1970] AC 1; Redding v Lee (1983) 151 CLR 117; Davies v Powell Duffryn Collieries Limited [1942] AC 601; McGregor on Damages 15th ed., considered.

DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Plaintiff sought exemplary damages pursuant to s 9(2) of the Dust Diseases Act 2005.
Held: Plaintiff proved requirement of s 9(2). Assessment of exemplary damages.
Dust Diseases Act 2005 s 9(2), referred to.
Parker v BHP Billiton Ltd [2011] SADC 104; BHP Billiton Ltd v Parker (2012) 113 SASR 206; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; McCabe v British American Tobacco Australia Services Limited [2002] VSC 73, considered.

LATZ v AMACA P/L (FORMERLY JAMES HARDIE & CO P/L)
[2017] SADC 56

This is a claim for damages for personal injury. Liability and quantum are in dispute.
In October 2016 the plaintiff, Mr Anthony Latz, was diagnosed with terminal malignant mesothelioma. He contends that he contracted this disease as a result of his exposure to asbestos that was produced by James Hardie and Coy Pty Ltd. He sues the defendant, Amaca Pty Ltd, as the successor to James Hardie.
Mr Latz alleges that he was exposed to asbestos dust and fibre during the course of building, construction and renovation work carried out at house residence that he had constructed in Glenalta, South Australia between 1976 and 1977. He alleges two forms of exposure. First, that he inhaled asbestos dust when cleaning up the site after the construction of his house. Second, that he inhaled asbestos as a result of cutting to size and fitting asbestos sheets in connection with his erection of a fence at that property shortly after the house was completed.
Amaca admits that if it were established that Mr Latz was exposed to asbestos as alleged, it is liable to him to pay damages in tort. Its case on liability is that the evidence falls short in establishing that he was exposed to asbestos at the Glenalta property.
Liability
On the issue of liability, Mr Latz’s case comprised of his own oral evidence, a video demonstrating the cutting of asbestos fence sheets, and documents that established that at all relevant times James Hardie was the sole manufacturer and importer of asbestos cement building materials in South Australia.[1]
[1] Exhibit P 13.
Mr Latz said that he contracted a building company known as AV Jennings to build a house on the property. The house was brick veneer and he said that it had asbestos cement sheeting in the eaves and in the wet areas, such as the bathroom, laundry and kitchen.[2] His evidence was that he cleaned up some of the rubbish and debris that had been left at the building site after the construction had been completed and that that material included asbestos. He said that he knew what asbestos and asbestos sheets looked like.[3]
[2] T 21.
[3] T 131.
He said that shortly after the building work was completed, in late 1976 or early 1977, he constructed a fence down the perimeter of one side of the property. The fence was 186 feet or 56.7 metres long.[4] The fence was constructed on a sloping block.[5] He described having a discussion with a work colleague about the appropriate material to use and settled on asbestos sheets so that there would be a uniform look on both sides of the fence. He said that he used what he understood were called “Super Six” asbestos sheets to construct the fence.[6] He was adamant that “[he] bought an asbestos product to build an asbestos fence. I knew it was asbestos.”[7]
[4]    T 22.
[5]    T 22.
[6]    T 23.
[7]    T 111.
The James Hardie stock lists for the years 1976 and 1977 confirm that Super Six was the only product it manufactured for fencing in those years and that the dimensions of the sheets and the capping were consistent with Mr Latz’s description of the product he used.[8] Other documents establish that James Hardie’s mix specifications for the period 1976/1977 confirm that the corrugated cement sheets manufactured by it contained asbestos.[9]
[8] Exhibit P 10-11.
[9] Exhibit P 14.
When Mr Latz was shown the video film of the cutting of corrugated asbestos cement sheets, he identified them as being the same that he used.[10]
[10] T 27.
Amaca contend that the only evidence concerning any exposure is Mr Latz’s understanding.[11] It says that without proof of his expertise in being able to identify what asbestos looks like, his evidence about the building material that he collected following the construction of his house falls short of establishing that it included asbestos.
[11] T 21 Exhibit P2 (admitted on the basis of an understanding as to the description of asbestos Super Six sheets).
In relation to the fence, it contends that Mr Latz was unable to give evidence of where he bought the products, what products he asked for, and any markings on the products which would identify them. It says that his memory does not extend beyond him attending at a hardware store in the Wingfield area and the fact of some materials being loaded onto a truck.
It noted that Mr Latz identified a work colleague with whom he had allegedly spoken about using asbestos to construct the fence and pointed to the fact that this person is still around and is able to give evidence. It submitted that Mr Latz’s failure to call this potential witness is unexplained and that in the circumstances it is appropriate to draw an adverse inference. It said that no evidence had been called as to what happened to the fence, if indeed it no longer exists. It submitted that in all the circumstances the Court cannot be satisfied to the requisite degree that the material used by Mr Latz to construct the fence at the Glenalta property was manufactured and supplied by James Hardie or that it contained asbestos.
Liability - Consideration
I commence with the submission concerning Mr Latz’s failure to call a potential witness. This is based on what is frequently described as the Jones v Dunkel[12] inference.
[12] (1959) 101 CLR 298.
In Manly Council v Byrne Campbell J described the Jones v Dunkel inference as follows:
Thus, if a witness is not called two different type of results might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
Even though a jury should be directed without the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one or both of those inferences: Café v Australian Portland Cement Co Pty Limited. Applying this principle to this situation of a trial judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.[13] (footnote omitted)
[13] Manly Council v Byrne and Anor [2004] NSWCA 123 at para 51-2.
In other words, I can draw an adverse inference, but I do not have to. In deciding whether I should, I need to reflect on the other evidence placed before the Court and the potential probative value of the evidence not called.
I thought that Mr Latz was an impressive witness. I accept his evidence. I thought it was telling that he so confidently identified the material depicted in the video as the same as the material he used to erect his fence. I accept his clear evidence of a memory of going out to buy asbestos sheeting.
It would not be in the least surprising that a witness would not now recall, some 40 years later, a conversation about what another work colleague should use to construct a fence. I therefore cannot assume that this witness’s testimony would have had any probative value. I possibly might have, but I cannot put it any higher than that.
In all the circumstances, I do not draw any inference from the fact that Mr Latz’s former work colleague was not called.
I find the fence Mr Latz erected at the Glenalta property in 1976 or 1977 comprised of asbestos sheets that were manufactured and sold by James Hardie.
I do not feel the same level of persuasion in connection with the other alleged exposure, but in light of the concessions that Amaca has made, my earlier finding is sufficient for Mr Latz’s claim to succeed.
Liability - Conclusion
Mr Latz is entitled to judgment for damages to be assessed. I now turn to consider that issue.
Compensatory damages
Past medical expenses have been agreed in the sum of $15,000.
At issue is the amount to be assessed for general damages on account of Mr Latz’s pain and suffering and loss of enjoyment of life. The amount to be assessed for his future treatment and care. The amount to be assessed for past and future gratuitous services that have and will be provided to Mr Latz by Ms Taplin. The amount to be assessed for past and future gratuitous domestic services that would have been provided by Mr Latz to others had it not been for his mesothelioma, and the amount to be awarded on account of future economic loss in connection with his pension entitlements that will cease on his death.
On these issues Mr Latz’s case comprised of his own oral evidence and that of his domestic partner, Ms Joan Taplin, as well as oral evidence and reports from the respiratory physician, Professor Mark Holmes, his treating oncologist, Dr Ken Pittman, an occupational therapist, Ms Mareeta Dolling and a forensic accountant, Mr Mark Thompson.
Amaca relied upon the evidence of Professor Richard Fox, a consultant oncologist, and the forensic accountant, Ms Tamara Lindsay.
The evidence establishes the following.
Mr Latz is 70 years old. He lives at Stonyfell, South Australia, with Ms Taplin. Both are retired. Mr Latz was employed by the State of South Australia between November 1974 and 2007 as a surveyor with various government departments including the Public Buildings Department, the Lands Department and the Department of Environment. As a result of his service with the State Government he obtained the right to a state pension upon his retirement. He receives a CPI indexed pension (“State pension”) as well as an income stream pension from Super SA. Mr Latz’s entitlement to a State pension is by virtue of the Superannuation Act 1974. Pursuant to that Act Mr Latz made specified contributions over the course of his employment with the State. Upon his retirement and his meeting of the eligibility criteria he was entitled to a pension for his life. Pursuant to s 75 of that Act he could have within a specified time made an election that converted that pension to a lump sum. As it was, he did not exercise that right of election. Pursuant to s 82 of that Act upon his death Mr Latz’s spouse becomes entitled to a pension equal to two thirds of his pension entitlement. Pursuant to s 85 of that Act a spouse entitled to a pension under s 82 can, within a specified time, make an election that converts that pension to a lump sum.
Mr Latz also receives a partial aged pension from Centrelink (“the Aged pension”).
Mr Latz and Ms Taplin routinely take extended holidays during the winter. On occasions they have travelled overseas. At other times they have gone caravanning around Australia.
In about July 2016, while they were caravanning through Queensland, Mr Latz was overcome with a headache and nausea. He saw a doctor in Tully, who prescribed antibiotics.
Soon after, he flew from Cairns to Bali for a wedding. When he returned to Queensland he felt sick, he had a high temperature and he experienced sweats. He saw a doctor in Tully who arranged a blood test. He was not given a diagnosis.
Upon returning to Adelaide he visited his general practitioner, Dr Wesley Wong, at the Tusmore Surgery. Dr Wong prescribed him more antibiotics. These did not alleviate his symptoms. Dr Wong arranged for him to have a chest x-ray which revealed a large right pleural effusion. Dr Wong referred him to Dr Sam Porter, a respiratory specialist.
Mr Latz was examined by Dr Porter on 12 September at the Wakefield Hospital. Dr Porter drained one and a half litres of fluid from his right pleura and arranged for a CT scan to be performed. The results of the pathologic testing of the fluid were inconclusive and Dr Porter referred Mr Latz to Dr Michael Worthington, a cardiothoracic surgeon.
On 10 October 2016, Mr Latz was admitted to the Wakefield Hospital and the following day he had surgery, a thoracoscopy and pleural biopsy, the results of which confirmed the diagnosis of terminal malignant mesothelioma. Understandably he was devastated on learning of his fate.
Mr Latz was then referred to Dr Pittman. He has seen Dr Pittman on four occasions to date. He is due to see him again later this month.
Mr Latz gave me the impression that he is a very stoic person who understates his pain. He told me that on occasions his pain rating can be as high as eight to ten, its worst, at night. I find that he is always experiencing at least moderate pain.
His sleep is interrupted. He sweats. He has lost about nine kilograms. He suffers from lethargy and fatigue.
Prior to his affliction with mesothelioma, he enjoyed a very good quality of life.[14] He was fit, strong and active with no ongoing health complaints.
[14] T 110.
Mr Latz’s house at Stoneyfell is large and it is on a large block of land. When he and Ms Taplin purchased it jointly in about 2001 it was in a dilapidated state. Since then he has undertaken various improvements. He has built retaining walls and raised garden beds, renovated a balcony and painted the house. Before his diagnosis he intended to continue to make improvements to the property. In addition to these improvements he undertook maintenance work on the house and other things around the house such as the swimming pool, garden and the large bushland block to the rear of the house. He did this for the benefit of both Ms Taplin and himself. It was his intention to continue to do this for so long as he was able.
Ms Taplin suffers from osteoarthritis in her spine and knees. She is unable to lift anything heavier than ten kilograms. She cannot kneel or squat. She is unable to carry children, move furniture and vacuum. Mr Latz therefore was responsible for some of the indoor chores such as vacuuming, moving furniture and lifting. He previously spent about one hour per week helping to clean the house and on average about three hours each month performing seasonal cleaning, for example moving furniture and cleaning windows. He was responsible for much of the shopping as Ms Taplin is unable to lift heavy shopping bags.
Mr Latz did much for others. He was a volunteer with the Country Fire Service. He would regularly help his neighbours. On most Saturdays he spent eleven to twelve hours[15] travelling to and from his daughter, Lauren, and son-in-law Ben’s house in Ashton, in the Adelaide Hills, where he performed extensive renovation services on their home for their benefit. He estimates that the house will take an additional two years to be completed. After completion, but for his mesothelioma, he intended to continue to spend his Saturdays helping his son-in-law work on his house.
[15] T 99.
Over the years he has spent much time with his three daughters and three grandchildren, whom he adores. From time to time, one of his daughters would ask him to take care of her three children while she performed other duties, and he did so. This occurred about every five or six weeks for about four hours at a time. In addition to this, his five year-old granddaughter, Zoe, usually stayed over at his house about twice per month. She stayed for between twelve and 24 hours each time. When Mr Latz provided childcare services for his grandchildren he was primarily responsible for their safety, as Ms Taplin’s restrictions made it difficult for her to do so.
Since his diagnosis Mr Latz he has had to stop much of this. He sees his grandchildren much less. He has stopped assisting his son-in-law. Although the occupational therapist, Ms Dolling found his house and surrounds to be in good condition when she visited in December 2016, given the inevitable progress of the disease, short of outside help, the level of presentation of the house and surrounding land will decline.
Professor Holmes spoke of the progression of the disease. It is steady and irreversible resulting in what might be described as a slow painful lingering death. He said that Mr Latz’s future will be characterised by:
Predominately stronger analgesics... such as gabapentin, other things that might have an effect on the nerves because the mesothelioma invades directly into the chest wall, into the nerves of the chest wall and that’s part of the extreme pain. It’s about at painful as it gets... It’s because of that constant invasion of ribs, chest wall muscles, and nerves of the chest wall.[16]
[16] T 137.
It is likely that Mr Latz will soon be offered chemotherapy.[17] It will not cure him. It might buy him some time but there is a risk it will cause very unpleasant side-effects.
[17] T 145-146.
Life tables indicate that on average a 70 year old Australian male can expect to live for about another 16.71 years. Mr Latz’s mother died at 90 years.[18] His father died at the age of 85 from “old age”.[19] There is every reason to assume that but for his mesothelioma; Mr Latz could have expected to live for many years to come.
[18] T 19.
[19] T 19.

I now turn to assess the various heads of damage in dispute.
General damages
Amaca submitted that a survey of sums of damages awarded in South Australia for mesothelioma claims in the last ten years reflects a range between $100,000 and $190,000. It contends that there is no warrant to increase the awards on account of significant changes in the cost of living etc.
It submitted that a tortfeasor takes a plaintiff as he or she is and that that can mean a higher or lower award than might otherwise be the case. It submitted that because Mr Latz has shown, through his particular personal characteristics, a relevant stoicism, a lower sum for general damages should be awarded. It said that this case should fall in the middle of the range of assessments in South Australia such that $175,000 is an appropriate award for general damages.
Mr Semmler QC, counsel for Mr Latz, took issue with this and said that just because Mr Latz outwardly appeared to be coping with his pain does not mean that he not actually experiencing it. He then said that how he is coping now is not necessarily an indication as to what may lie ahead. He submitted that the task of assessing general damages involves a consideration of what has happened to the plaintiff in the past, and what will happen to him in the future and then fixing a figure “by the use of the awareness produced by general experience, current general ideas of fairness and moderation”, it being “a matter of judgment in the sound exercise of sense of proportion.”[20]
[20] Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 at 125-124; Wallaby Grip Limited v Peirce [2000] NSWCA 299 at para 13.
Mr Semmler referred me to Brennan v James Hardie & Co Pty Ltd[21] where Curtis J said of the assessment of damages in a mesothelioma case:
What sum is reasonable and proportionate not only for the exquisite pain confronting the plaintiff, the appalling reality of the manner of his impending death, but also the grief and outrage at the fact of that death itself? The sum must reflect the fact that his life is no trifling thing. The plaintiff must have the consolation that the community through this [Court] values his life highly.[22]
[21] [2001] NSWDDT 2.
[22] At para 12.
He then submitted that the assessment of general damages must commence with the recognition that there is but one common law of Australia.[23] This was recently confirmed by the Full Court of the Supreme Court of South Australia in BHP Billiton Limited v Hamilton.[24]
[23] Kable v Director of Public Prosecutions (1996) 189 CLR 51 per McHugh J at 112.
[24] (2013) 117 SASR 329.
In determining that it was appropriate for the Court to take into account comparable awards both in South Australia and in other jurisdictions when assessing damages for pain and suffering, Blue J referred to the passing of the Jurisdiction of Courts (Cross-Vesting) Act in 1987 and the fact that there was but one common law in Australia. His Honour said:
The overall result of these developments, especially over the last 25 years, has been that the maintenance of inconsistent damages assessment regimes in each State or Territory would be contrary to the contemporary approach to the fundamental unity of Australian common law and harmony of the Australian judicial system. The increased mobility of the Australian population across State borders may result in victims of the same wrong committed in one State and suffering similar injuries bringing actions for damages in different states. If inconsistent assessment regimes were maintained, it would encourage forum shopping and result in unnecessary and undesirable conflicts in relation to transfer applications under section 5 of the Cross-Vesting Acts. If two otherwise identical cases from Albury and Wodonga in which there were a large disparity between damages assessments were to reach the High Court at the same time, it would be incongruous if, in the absence of relevant legislative differences, the High Court were to uphold the reasonableness of each assessment.[25]
[25] Above cited at 357.
Stanley J took a slightly different approach to Blue J, but arrived at a similar conclusion. He said:
There is no principle that the general level of awards of damages should be consistent between jurisdictions. Nonetheless, an award of damages for pain, suffering and loss of amenities differs from an award of damages for loss of earning capacity. There is less reason to place different monetary values on the experience of injured persons in different jurisdictions based on wage levels, earning power, or property values. It is appropriate to have regard to awards in other jurisdictions to ensure that, in giving weight to current general ideas of fairness and moderation, there is no glaring inconsistency between the value courts in this State place on an injured person’s pain and suffering compared to the value placed on a comparable experience in other jurisdictions.[26]
[26] At 406.
Mr Semmler submitted that since Hamilton, there have been a number of judgments in mesothelioma and other terminal dust disease cases around Australia. He provided me with a list of awards in recent cases concerning mesothelioma victims. In Dean v Tower Insurance Ltd[27] the plaintiff who was 61 at trial, had symptoms for one year before trial, and a prognosis of six months from trial was awarded $290,000 for general damages. In Dionisatos v Acrow Formwork and Scaffolding Pty Ltd,[28] a plaintiff who was 79 at trial, had symptoms for about nine months until death before trial, received an agreed amount of $290,000 for general damages. In Geyer v Resi Corporation[29] a plaintiff who was 85 at trial, had symptoms for over 18 months at trial, and a prognosis of one year, received $175,000. In Rogers v Amaca Pty Ltd[30] a plaintiff who was 72 at trial in March 2014, had symptoms since 2010 and had a prognosis of four months, received $350,000. In Dunning v BHP Billiton Limited[31] a plaintiff who was 54 at trial, had symptoms for four years, and a prognosis of four years, received $500,000 for general damages. In Amaca Pty Ltd v Tullipan[32] the New South Wales Court of Appeal declined to interfere with an assessment made by the trial judge that a 69 year old plaintiff who had endured symptoms of asbestosis for ten years and was expected to die within weeks of the trial, was entitled to $350,000 for general damages.
[27] [2013] NSWDDT 9.
[28] [2013] NSWDDT 8.
[29] [2013] SADC 122.
[30] [2014] NSWDDT 1.
[31] [2014] NSWDDT 3.
[32] [2014] NSWCA 269.
He submitted that the decision in Geyer was handed down just over two weeks after the decision of the Full Court in Hamilton and that the plaintiff in Geyer did not have an opportunity to address the Court on the Full Court’s decision in Hamilton.
Taking into consideration awards of general damages in other jurisdictions, but having particular regard to the pain and suffering suffered by Mr Latz to date and his inevitable pain and suffering in the future, he submitted that an appropriate award for general damages would be of the order of $300,000.
Whilst a consideration of other awards in other cases is useful, and it is important that there be some consistency in the assessment of damages, it is trite to say it, but each case must depend on its own particular facts.
For example, in Dunning v BHP Billiton Limited, Kearns J described the case as concerning one of the worst cases of mesothelioma that he had ever seen. It involved a plaintiff in in his fifties who had torrid surgical treatment, a very difficult time coping with chemotherapy and radiotherapy, and a much longer than usual period of past and expected future pain and suffering. It is understandable why the trial judge made such a large award. However, the case provides very little assistance in determining what the appropriate award is in this case.
Mr Latz suffers from a debilitating and painful progressive disease. I accept his evidence and the descriptions of his condition given by Professor Holmes, Dr Pitman and Ms Taplin. That said, and without in any way understating how devastating it must be to be suffering from mesothelioma, my impression is that Mr Latz is, in terms of his pain and suffering, at least for now, faring better than most.
Despite what has happened to date, in terms of the future, there is no reason to assume that Mr Latz’s pain and suffering will be any less than it is for others. Over the remainder of his life, which Dr Holmes predicts will be of the order of seven or so months, he will become increasingly disabled and will eventually be totally dependent on others for assistance with even the most basic aspects of daily living. He will require narcotic analgesia to control severe and unremitting pain. He will require oxygen to assist with breathing.
My very firm impression is that Mr Latz is a person who took a great deal of pride in his physical prowess and his capacity to work on his house and garden and to help others, such as family and neighbours. His capacity and willingness to do this is part of who he is. A fit, proud man who derived much satisfaction from the knowledge that others could and did rely on his physical strength, stamina and skill has now been reduced to an invalid who in the not too distant future will become increasingly reliant on others to the point where he will become totally dependent. A significant part of who he is has been pulled from under him. His sense of disappointment, frustration and loss as a result of his inability to do the things that he once could, and his knowledge that he will never be able to do them again, must be very confronting.
The award for general damages must reflect a better than usual past pain and suffering, a typical future pain and suffering and a significant loss of enjoyment of life that is greater than the norm.
Taking all of these factors into account, I assess such damages in the sum of $230,000.
I award interest on past loss in the amount of $2,000.
Loss of expectation of life
As for loss of expectation of life, apart from some hypertension and intermittent atrial fibrillation, both of which are controlled by medication, Mr Latz had no comorbidities. Prior to his mesothelioma he was a fit, active man. Given his family history of longevity and relatively good health he could have expected a long life. In conformity with authority this award must be moderate. I assess such damages in the sum of $20,000.
Future medical expenses
Over the remainder of his life Mr Latz will need to visit his GP, consult with a respiratory physician and/or oncologist, consult with a palliative care centre or pain management specialist, take medication including pain relief, have oxygen to help him breathe, and have x-rays and/or CT scans.
There were some differences between the medical experts as to extent that these would be required. These reflect no more than legitimate differences in professional opinion. Moreover, what is involved in assessing this head of damage is no more than a calculated guess. Having weighed up the evidence I allow $10,000 for such expenses.
Mr Latz is likely to be offered chemotherapy. He will probably take it up, but that is not certain. If he does, the side effects might be such that he will not elect to continue with it. The most expensive aspect of the treatment is the drug and almost all of its cost is borne by the Government. He cannot claim the full cost of the drugs.[33] His claim for the cost of the drugs is limited to what he has to pay. To this must be added the costs associated with administering the drug. All up I allow $5,000 for this.
[33] National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 573 per Dixon CJ.
He made need radiotherapy. I allow $1,000 for this.
Mr Latz may also be offered Keytruda, which is a recently developed new type of cancer treatment that blocks a protective mechanism on cancer cells, and allows the immune system to destroy them. It was described in evidence as one of the most promising developments in the fight against cancer in the last twenty or so years. It is primarily used for patients with advanced melanoma and only has Government subsidy when used for that purpose. It is being used as a possible treatment for mesothelioma and is showing some promise. It will not cure the disease but if successful it will extend and may improve the quality of Mr Latz’s life. Without Government subsidy the cost of this treatment will be of the order of $65,000. To reflect the reasonable possibility that Mr Latz may take up the option of such treatment I allow the sum of $25,000.[34]
[34] In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 the High Court held that an award of damages can be adjusted to reflect the degree of probability.
Even before he reaches the final stages of the disease, Mr Latz may need to go to hospital at a cost of $7,000 a week. He may need to be in hospital for one week, two or more, perhaps less, or not at all. I allow $15,000 for this.
Such is Mr Latz’s attraction to his home my impression is that he will attempt to remain at home for as long as is possible. The cost of home care in the final stage of Mr Latz’s life, as opposed to hospice care, is about the same, at $7,000 a week. Based on the evidence I think it would be reasonable to allow four weeks. I therefore allow $28,000 for this.
Mr Latz will need equipment such as a wheel chair, a hospital bed, an electrically operated chair and ancillary items such as a shower chair, commode chair and the like. Depending upon whether these items are purchased or hired the costs will be of the order of $5,000 or more.
All up I think it is reasonable to allow $90,000 for future medical and like expenses.
Past and future gratuitous services that have and will be provided to Mr Latz by Ms Taplin
Ms Taplin has gratuitously provided Mr Latz with care and in accordance with settled authority he is entitled to be compensated for that as part of his claim. She has driven him to somewhere between ten and fifteen medical appointments. She has cooked for him and has done some vacuuming, mopping and lifting over and above her own cleaning. The hourly rates cited by Ms Dolling are based on the cost of one off services and reflect on costs and profit margins. Whilst the authorities indicate that commercial rates are appropriate, as a matter of fairness, I think on costs and profit margins should be excluded. The rates should also be assessed on the basis that the service will be routinely provided. I am permitted to know, for example, that a regular cleaner or gardener charges a lower hourly rate than one engaged for a one off attendance. Without descending into detail, all up I allow $15,000 for past gratuitous services. This includes a modest amount for past interest.
It can be expected that Ms Taplin will continue to provide these services into the future and that over time the extent of the services that she will provide will significantly increase to the point where she will become a de-facto nurse. Calculating their value is difficult. In my view the assessments provided by Ms Dolling are at best no more than a point of reference. Her figures are highly speculative and based on assumptions that may or may not be made out. It is clear that her estimates in December 2016 as to what would happen in the period up to now were far more pessimistic than was actually the case.
In approaching this issue I assume that in a month or so, Mr Latz will begin to become less independent and that this will increase until the final stage which I assume will commence towards the end of this year. I assume that over the period between now and then the amount of gratuitous assistance will increase from about three or four hours a week to fifteen or more hours a day. I have elsewhere made allowance for the possibility that over this period he may be hospitalised. Taking all these matters into account I allow $60,000.
Past and future gratuitous domestic services that would have been provided by Mr Latz to others - Sullivan & Gordon damages.
Section 9(3) of the Dust Diseases Act provides:
(3) Despite any other Act or law, the Court must, when determining damages in a dust disease action, compensate, as a separate head of damage, any loss or impairment of the injured person's capacity to perform domestic services for another person. Note—This subsection is intended to restore the effect of Sullivan v Gordon.[35]
[35] (1999) 47 NSWLR 319.
In Abel v Amaca Pty Ltd[36] Barrett DCJ applied this provision as follows:
Sullivan v Gordon was a case which recognised that a disabled plaintiff who had lost the capacity to care for a child or children is entitled to be compensated for his disability. Subsequent cases have applied that principle toward the care of persons for whom the plaintiff had a legal obligation to care.
The plaintiff claims $121,048.26 under this heading, $54,245.92 for the past and $66,802.34 for the future. The basis of the claim is that the plaintiff should be compensated because he is no longer able to provide for his family the furniture he once could. The sum arrived at is computed on the basis that the plaintiff would spend 8 hours a week pursuing his interest in woodwork. The plaintiff submits that I should regard that activity as a domestic service.
I reject that submission. I have already referred to the skill and energy that the plaintiff applied to his pastime. The furniture he produced was, I am sure, highly valued by his wife and family. I have seen photographs which support the plaintiff’s evidence that the items were of a high quality and were used in the house. Nevertheless the provision of furniture to enhance the amenity of the plaintiff’s own household and those of his children cannot be regarded as a domestic service within the meaning of the Act. Mr Semmler was unable to refer me to any authority in support of the claim. I make no award under this heading.[37]
[36] [2010] SADC 98.
[37] [2002] SADC 98 at paras 209-11.
Mr Semmler submitted that Judge Barrett was wrong in so deciding and that I should not follow this decision. He submitted that the Act is remedial legislation and that as such I should give the words used the most generous meaning they will allow.
Mr Semmler submitted that by and large all of the services that Mr Latz provided to his partner, his children and their spouses, and his grandchildren could be described as domestic services and as such damages were payable in connection with his present and future inability to provide those services in accordance with s 9(3) of the Act.
He formulated on the basis that Mr Latz was providing garden maintenance, bushland maintenance, home maintenance and vehicle maintenance to Ms Taplin; and that in addition to this, he was providing services to his daughter and son-in-law based on ten hours per week and was spending about nine hours per week caring for his grandchildren. He contended that Mr Latz could have been expected to continue to supply these services for the next ten years. He sought close to $70,000 for the past and over $700,000 for the future.
He made reference to the judgment of Deane J in Nguyen v Nguyen in where he said:
In referring to “domestic services”, I intend to include ordinary housekeeping, house maintenance and gardening services and any additional material services, such as hairdressing, dressmaking or teaching, which one spouse may render to the other spouse or to her or his children.[38]
[38] Nguyen v Nguyen (1990) 169 CLR 245.
It is settled law that a court should follow its own decisions unless it is convinced that the earlier decision is plainly wrong. In my view, when Judge Barrett in Abel v Amaca gave the expression a more limited reach than that which was asked for in that case, he was not plainly wrong. Indeed, with respect, I think that he was right.
Whilst the Court must take into account the fact that this is undoubtedly remedial legislation, it does not follow that the Act should be construed so as to give it the widest possible reach. As Mason CJ, Brennan, Deane and Dawson JJ observed in Khoury v Government Insurance Office of (NSW):
the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of “the actual language employed” and what is “fairly open” on the words used.[39]
[39] (1984) 165 CLR 622 at 638.

The words “domestic services” are not technical. They are ordinary words that have a customary meaning. They are generally regarded as referring to the variety of household services that are performed for an individual or a family, such as cooking, caring for children and elderly dependents, housekeeping, i.e., doing laundry and ironing, cleaning and household maintenance, shopping for food and items used in the house and other household errands.
Some of the activities that Mr Latz has undertaken for others that form his claim for past and future loss of domestic services can be so described, but others not. The work that he undertook for his daughter and son-in-law at the Ashton property is not a domestic service. Babysitting is, as is the maintenance work at his home. But some of that work Mr Latz did at his home extended beyond maintenance. He spoke of it in terms of projects. My impression is that for him, working in his backyard and on his home was a hobby. Major projects like erecting retainer walls and the like go beyond mere maintenance. They are what may be described as home improvements. In my view these are not domestic services for the purposes of the Act.
Amaca submitted that the amount of domestic services provided by Mr Latz outside his home are of the order of eight hours per week. It submitted that these should be allowed at $30 per hour. It then submitted that it would be reasonable to allow such assistance for a closed period as this type of work may have become increasingly difficult as Mr Latz’s age advanced. It submitted that six years would be appropriate. It then said that this amount should be discounted on account of vicissitudes which would include, among others, the sale of the house or the otherwise ill-health of Mr Latz and Mrs Taplin. It suggested a discount of 15% to yield a figure of $58,500.
Amaca said that in respect of the claim for the services in relation to his grandchildren should not be allowed. It submitted that this was not service but rather a manifestation of the very close relationship that Mr Latz and Mrs Taplin have with Mr Latz’s children and grandchildren.
In my view there is a distinction between babysitting and spending time with one’s grandchildren as part of the loving relationship between grandparents and grandchildren. Sullivan & Gordon damages were an extension of the concept of compensating a plaintiff for services needed by an injured plaintiff that have and will be provided gratuitously by others that was enshrined in Griffiths v Kerkemeyer.[40] They were not intended to give rise to an entitlement to damages to cover any situation where one spends time with a relative that some other person might derive some collateral benefit from. Grandparents who take their grandchildren away camping because it is a mutually satisfying outing are not providing a service just because the venture may enable the children’s parents to have a night alone or go out together. It would be different if the parents asked the grandparents to babysit in lieu of a paid alternative. That would be the provision of a service.
[40] (1977) 139 CLR 161.
I conclude that much of the time Mr Latz has spent with his grandchildren was not in the nature of the provision of a domestic service. Accordingly, there must be a considerable discount of the amount claimed in respect of the time Mr Latz did and planned to spend with his grandchildren to reflect this. The award must be limited to the occasions that can fairly be described as the provision of a domestic service.
I think the approach Amaca suggested in relation to assessing the value of the gratuitous domestic services provided by Mr Latz to Ms Taplin is not too far off the mark. To this I would add a further sum to reflect the babysitting services that Mr Latz can no longer provide to his daughter.
I allow $100,000 for past and future Sullivan & Gordon damages. This includes a modest amount for interest for past loss on account of this head of damage.
Economic Loss
Mr Latz claims to be entitled to economic loss for the loss of the pension occasioned by his premature death. He relies upon Mr Thompson’s reports of 21 November 2016 and 31 March 2017 and asserts that the amount lost is $654,871. The date of calculation is 1 May 2017. It is based on a current life expectancy to 31 October 2017 and a pre-morbid life expectancy to 2034 based on the medium life expectancy tables, a combined net weekly pension income of $989 and a discount rate of 3% that yields a weekly multiplier of 672.03.
Amaca submitted that to avoid over compensation the cost of Mr Latz maintaining himself in the “lost years” must be taken into account. It contended that potential receipt by Ms Taplin of an entitlement to two thirds of the amount of his superannuation entitlement also has to be factored.
It then submitted that Mr Latz’s lost entitlement to a partial Age pension should be excluded. It said that such a claim had not previously featured in an assessment of damages for personal injury.
It is trite to say it but the fundamental purpose of an award of damages in an action for tort is to place the victim of the tort, so far as money can achieve it, into the position that he or she would have been in but for the tort. Nothing more, nothing less.
But for James Hardie’s tort, Mr Latz would have continued to receive his State pension for the rest of his expected life. That life has been considerably shortened by its tort. Mr Latz is entitled to be compensated for the loss of the pension in the lost years.
The receipt of that pension is contingent on him continuing to live. My survey of the relevant case law suggests that basic maintenance expenses must be deducted to reflect this.[41] Amaca suggest an amount of $150 a week. That appears to me to be a bit modest. I would have thought that $30 a day was a more realistic assessment of the basic cost of keeping oneself alive. I also need to factor the fact that had he not had mesothelioma and had lived a much longer life, as he became much older, it is likely that he would have required more medical and like services to continue to sustain himself such that the weekly amount would eventually have increased, and towards the end of his life, potentially quite significantly.
[41] See, for example: Skelton v Collins (1966) 115 CLR 94 at 121 per Taylor J, who, after stating that an award of economic loss in connection with a plaintiff whose life had been shortened by the tortiously inflicted injury was entitled to damages assessed by reference to how long he would have lived but for his injuries, said: “Any assessment should, of course, take into account the vicissitudes and uncertainties of life and also the fact that if the plaintiff had survived for the full period it would have been necessary for him to maintain himself out of his earnings…”. See also the judgment of Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 and the judgment of Mason J Fitch v Hyde Cates (1982) 150 CLR 482.
What then of the benefits that Ms Taplin may be entitled to upon Mr Latz’s death? Amaca argued that Ms Taplin’s potential entitlement a portion of Mr Latz’s pension should be seen as part of his remuneration package and therefore should be taken into account.
I was informed by counsel that this is the first case of its kind. I do not have precedent to guide me. I must determine for myself the issue by reference to common law principles.
Where a plaintiff is entitled to a collateral benefit from a source other than the tortfeasor that results in the payment of money, the entitlement to which is triggered by the tort, there is a natural inclination to think that to assess damages without taking that payment into account would result in excessive compensation.
Had Mr Latz not brought these proceedings and had Ms Taplin prosecuted an action for damages at common law, her potential entitlement to the pension would have been taken into account in assessing her loss.
Intuition therefore points to taking Ms Taplin’s potential receipt of benefits into account.
But as the learned author, Harvey McGregor observed in his treatise on the law of damages, the path taken by collateral benefits in fatal damages claims is quite different to that taken in personal injury claims.[42]
[42] McGregor on Damages 15^th Edition at para 1594.
The decisions of the High Court in National Insurance Co of New Zealand Ltd v Espagne,[43] the House of Lords in Parry v Cleaver[44] and the High Court again in Redding v Lee[45] make it clear that in personal injury litigation certain types of benefits received by a plaintiff as a result of the tortiously inflicted injury are not taken into account when assessing damages.
[43] (1961) 105 CLR 569.
[44] [1970] AC 1.
[45] (1983) 151 CLR 117.
As Dixon CJ explained in National Insurance Co of New Zealand Ltd v Espagne:
There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence. If a fund is raised by subscription for the benefit of a badly injured neighbour obviously this cannot operate in relief of the liability of a man who negligently caused the injury. So in a contract of accident insurance; where in the absence of special stipulation the insurer will not succeed by subrogation or otherwise to the insured’s right of recourse against others in the case of injury by their negligence. But for the reason given it does not follow that the negligent parties can treat the insurance as operating in relief of their liability. It was effected by the money of the plaintiff for his own benefit in the event of an accident, a benefit both independent of and cumulative upon whatever right of redress against others might arise out of the circumstances of the accident.[46]
[46] (1961) 105 CLR 569 at 573.
In this case, for example, if Mr Latz had taken out permanent disability insurance that provided for a lump sum payment upon the occurrence of a defined event, such as the diagnosis of terminal cancer, the entitlement to the insurance payment would not feature in the assessment of his damages. It would be ignored.
I must therefore put intuition to one side and focus on notions of justice, reasonableness and public policy[47] in determining this issue.
[47] Parry v Cleaver [1970] AC 1 at 13 per Lord Reid.
Although Ms Taplin suffers from osteoarthritis, there is no evidence that she is suffering from any other condition that could lead to her premature death. On balance, she will survive Mr Latz and she may have done so even if he had not contracted mesothelioma. Thus, on balance, she would be entitled to a pension equal to two thirds of his pension entitlement that she could convert to a lump sum. Thus she will be entitled to a pension that she may not have been entitled to or if she was, she will be entitled to it earlier and, on balance, for a longer period than would otherwise have been the case.
In considering the significance of this potential benefit, it is important not to lose sight of the fact that this is not Ms Taplin’s claim. It is Mr Latz’s. That then begs the question as to why as a matter of fairness and policy, his damages should be reduced because his spouse is likely to receive a benefit from his death. If he has life insurance and she is named as his nominated beneficiary, no question of any reduction of his entitlement to damages would arise because of her potential receipt of the fruits of that insurance. As a matter of fairness and policy should this potential benefit be treated any differently?
The State will potentially provide benefits to Ms Taplin because Mr Latz paid for her financial protection through his contributions to the pension scheme. If that protection was in the form of an agreed lump sum it would be seen as life insurance. The fact that it can be paid as a fortnightly benefit for the duration of her life does not, to my mind, alter its character.[48]
[48] By analogy see the discussion by Lord Reid in Parry v Cleaver at 16.
When viewed in this way, the authorities make it clear what then follows. As Mason and Dawson JJ explained in Redding v Lee:
It would be unjust and unreasonable to reduce the damages of the prudent plaintiff who insures himself against accident by allowing the premiums which he paid and the proceeds of the policy to enure for the benefit of the tortfeasor and make the existence of the insurance the occasion for giving the plaintiff a lesser award of damages than he would have obtained had he not been insured.[49]
[49] (1983) 151 CLR 117 at 138.
In my view Ms Taplin’s potential entitlement to a pension from the State must be disregarded in the assessment of Mr Latz’s claim for economic loss.
I now turn to consider the position in respect of Mr Latz’s Aged pension. I would not read anything into the fact that such a claim has not previously featured in any judgment. I suspect it has more to do with the fact that ordinarily the Aged pension will have been the plaintiff’s only source of income and that by the time living expenses are deducted there will have been little, if anything left over to claim.
Conceptually I can see no reason why Mr Latz’s entitlement to an Aged pension should be treated any differently to his State pension. But for James Hardie’s tort, Mr Latz would have potentially continued to receive an Aged pension for the rest of his expected life. That life has been considerably shortened by its tort. Mr Latz is entitled to be compensated for the loss of that pension in the lost years. There is however an important difference in how this should be assessed. Mr Latz’s entitlement to the State pension is enshrined in legislation. In contrast to this, his entitlement to the Aged pension is inextricably linked to his personal circumstances, i.e. his relationship with Ms Taplin, and the policies of the Government. I think that warrants some caution being exercised in assessing its lost value.
I allow $500,000 for this head of loss. I reach that figure by starting with the figure of $654,871 and reducing it by $137,550, based on an assumed cost of maintaining Mr Latz of $210 per week. I have then reduced that balance to take into account that it is likely that towards the end of his life the cost of his maintenance will increase and to reflect some caution in assessing the value of the loss of the Aged pension. I have then made a further adjustment upwards to reflect my expectation that if there is any contingency in respect of the duration of the lost years, given Mr Latz’s otherwise good health and seemingly good genes, it might be a bit longer than the average for a man of his age.
Conclusion as to the quantum of compensatory damages
In summary, I assess compensatory damages as follows:
·Pain and suffering and loss of enjoyment of life   $230,000
·Interest on past pain and suffering  $2,000
·Loss of expectation of life  $20,000
·Past medical expenses  $15,000
·Future medical expenses  $90,000
·Past gratuitous services, and interest  $15,000
·Future gratuitous services  $60,000
·Past and future Sullivan & Gordon damages and interest           $100,000
·Future economic loss  $500,000
·Total  $1,032,000
Exemplary damages
Mr Semmler contended that this is a watershed moment in the history of asbestos related litigation against Amaca. He submitted that James Hardie’s wanton disregard for the health of the public was reprehensible and that this Court, through its award of exemplary damages, should make an emphatic statement on behalf of the public at large condemning James Hardie for what it did and to send a message to others that something like this should never happen again.
Amaca submitted that I should not entertain an award of exemplary damages because Amaca is a party to a charitable trust established to compensate the victims of James Hardie caused asbestos diseases.
Next it said, that if I was minded to make an award, the situation here was not dissimilar to that which existed in Parker v BHP[50] where the trial judge awarded $20,000 for exemplary damages.
[50] Parker v BHP Billiton Limited [2011] SADC 104.
Mr Semmler took me through an array of documents that show that James Hardie knew as long ago as 1938 about the risk to the health of its workers from asbestos dust and that over the years that followed it became increasingly aware of the danger that it posed. He pointed to evidence that indicates that by the early 1960s it was aware that asbestos sheeting could cause mesothelioma and that the end users of those products were at risk of developing that disease and that it made a conscious choice not to alert the public of that fact. This gives rise to the irresistible inference that it put profit ahead of public safety. The evidence also shows that by 1976 James Hardie was aware of precautions that could be taken to minimise the risk of contracting asbestos related diseases as a result of cutting asbestos products of the type that it supplied to Mr Latz, as it had implemented such precautions in respect of its own workforce.
Although, as was explained by the Full Court in BHP v Parker,[51] exemplary damages under the Act are a different species of compensation to that known to the common law, there are parallels. What is different is that the Act provides a statutory formula by which to determine whether an award of exemplary damages can be made. Section 9(2) of the Act provides:
(2) The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—
(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and
(b) knew, at the time of the injured person’s exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
[51] [2012] SASCFC 73; (2012) 113 SASR 206.
As was explained in Parker, where the criteria prescribed under s 9(2) have been met, and there was no issue that they had not been met here, the expectation is that an award of exemplary damages is the norm. I can see no reason as to why an award should not be made in this case. Whilst a fund has been established to deal with asbestos related claims for which James Hardie is liable and Amaca administers that fund, Amaca is the successor to James Hardie. It is essentially the same entity. Moreover, there is nothing in the terms of the documents establishing the fund that excludes from its ambit a liability to pay for exemplary damages.
I am therefore prepared to entertain the making of an award of exemplary damages as against Amaca.
The authorities make it clear that the focus of an award of exemplary damages is to punish the tortfeasor to express condemnation of the tortfeasor’s conscious and contumelious disregard for the plaintiff’s rights and to deter the tortfeasor from committing like conduct again.[52]
[52] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 per Brennan J.

Although there is evidence that establishes that James Hardie was anything but a model corporate citizen in connection with its attitude to asbestos and its indifference to the health of those who it exposed to it, my task is not to punish Amaca for all of James Hardie’s misconduct. If it is to be punished, it will be in connection with the civil wrong that it caused to Mr Latz and no one else.
The significance of the evidence of James Hardie’s state of mind from 1938 onwards is that it establishes that by about 1976, when it harmed Mr Latz, it was well aware that he was at some risk of dying as a result of the use of its product. It was well aware that there were precautions that he, as an end user, could implement to reduce that risk. It failed to give him any warnings or advice about precautions and its failure to do so was motivated by its thirst for profit which it valued ahead of his safety.
As was the case in BHP v Parker it is 40 years or so since the tort occurred. James Hardie no longer supplies asbestos in Australia. As Doyle CJ and White J observed in Parker, “the dangers of asbestos are now widely recognised; activities associated with asbestos are heavily regulated; and it is the norm now for extreme care to be exercised in relation to contact with asbestos.”[53] As such, an award of exemplary damages is not necessary to deter James Hardie or others from supplying asbestos products. The only purpose of an award of exemplary damages would be to express condemnation for what James Hardie did to Mr Latz. Not in a personal sense, but in an objective sense. I imagine that Mr Latz views James Hardie with utter contempt. But in assessing whether to make an award and if so its amount the law makes it clear that “the principal focus of the inquiry is on the wrongdoer not upon the party who was wronged.”[54]
[53] (2012) 113 SASR 206.
[54] Parker v BHP Billiton Limited [2011] SADC 104 at para 994.
In determining whether I should make an award, and if so how much the award should be, I think it is appropriate to compare the circumstances here to those in Parker. It is also essential that I remind myself that in evaluating James Hardie’s misconduct I must do so by reference to community attitudes and standards as they were at the time of the tort, and not as they are today, 1976-77 was more than a generation ago. Forty years on we are much less tolerant of those who cause death or injury through their negligence. We routinely imprison motorists who negligently kill or seriously maim others on our roads. In 1976 such motorists would rarely, if ever, be gaoled. Indeed, many would not have even been prosecuted. We now treat cigarette manufacturers with disdain. We forbid them from advertising their products and only permit them to sell them in plain paper packaging and in packets that contain graphic photographs of the harm that cigarettes can cause. Forty years ago, even though we knew that cigarettes could cause lung cancer and kill,[55] we allowed cigarette manufacturers to not only advertise their products at will, but to sponsor major sporting events and present trophies to our sporting heroes. In 1976 the maximum penalty imposed upon an employer in this State for a breach of its duty to take all reasonable precautions to ensure the health and safety of its workers was increased from a paltry maximum fine of $200 to a marginally less paltry sum of $500.[56] In 2012 this State, along with others across the Commonwealth, enacted the Work Health and Safety Act 2012, that exposes persons conducting a business or undertaking to severe penalties for breaches of their obligation not to put their employees or those affected by their work at risk, that in an extreme case involving a corporate entity can be a fine of up to $3,000,000.[57]
[55] For example in McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 Eames J recorded that British American Tobacco Australia pleaded that from a time prior to 1962 the Australian community was informed that smoking could cause lung cancer, and other diseases.
[56] See s 18 of the Industrial Safety, Health and Welfare Amendment Act 1976.
[57] See ss 19 and 31 of the Work, Health and Safety Act 2012.
In Parker, BHP negligently failed to take precautions that it should have taken resulting in its employee contracting mesothelioma. It underestimated the risk that asbestos posed. It failed to keep fully abreast of contemporary knowledge about the dangers of asbestos. Its want of care to Mr Parker was inexcusable.
James Hardie was fully informed about the dangers of asbestos. It knew it could kill end users. It failed to warn Mr Latz of the potential harm he might suffer by using its product. It failed to advise him of known precautions that might have minimised that harm. Whilst its misconduct was not malicious or intentional, in the sense that it did not deliberately intend him harm, it amounted to reckless indifference.
BHP was at the time of the commission of its tort to Mr Parker a large a well-resourced company. It should have known better. James Hardie did know better. The trial judge rightly concluded in Parker that the public in the 1970s would condemn BHP’s negligence. I am in no doubt that looked at through the same prism; I should condemn James Hardie’s negligence. Amaca should be subjected to an award of exemplary damages and because James Hardie’s culpability was greater than BHP’s, the award must be greater.
If I were judging James Hardie’s misconduct by today’s standards, I would award a very large sum for exemplary damages to reflect community outrage. But looked at by reference to community attitudes and standards in 1976, I must make a far more modest award recognising that its gross negligence would have then been regarded as far less egregious than it would be today.
Conclusion as to exemplary damages
In the circumstances I consider that it is appropriate to make an award of exemplary damages and that the amount to be awarded should be $30,000.
Judgment
Mr Latz is entitled to judgment as against Amaca in the sum of $1,062,000 comprising of $1,032,000 by way of compensatory damages and $30,000 by way of exemplary damages. I shall hear the parties as to costs.